EDITORIAL – 24/10/2013: MOVIE TO MAKE A (LOCAL) DIFFERENCE

By Andrew L. Urban

Three weeks ago I wrote about films that deal with and hope to make a difference one way or another on a global issue (climate change).

This week, I want to talk about an Australian film that deals with a significant Australian subject: miscarriage of justice and the absence of process available to correcting them – short of a Royal Commission.

The film, Shadow of Doubt, has only been screened so far at Hobart’s State Cinema and on the Crime Investigation Network (FOXTEL) – both on July 31, 2013. But now there will be two more public screenings, one in Melbourne on October 28 (organised by Australian Business Women’s Awards Alumni at the Telstra Theatrette) and one in Sydney on November 5 (6pm for 6.30pm) at the Chauvel in Paddington, organised by the filmmaker herself, Eve Ash (who is one of the Awards Alumni).

We report this week that the audience at the Sydney screening will be addressed by Chester Porter QC, the respected barrister who has been passionate all his life about uncovering and correcting wrongful convictions and who (among many other things) was counsel assisting the Lindy Chamberlain Morling Royal Commission.

This is perfectly apt, since Shadow of Doubt reveals a case that has a ghostly similarity with the notorious Chamberlain trial. At the centre of the story is Sue Neill-Fraser, a Hobart grandmother (she’ll turn 60 early next year), found guilty of the murder of Bob Chappell, her partner of 18 years, aboard their yacht Four Winds, anchored in Sandy Bay on Australia Day 2009.

As in the Chamberlain case, there was no body, no weapon, no witnesses; likewise, the forensic evidence was dubious and the circumstantial evidence frail. Shadow of Doubt itself takes a forensic approach to uncovering just some of the flaws and as its title implies, casts a shadow of doubt over the conviction.

After seeing the film, alarmed lawyers and civil libertarians have joined the family of Susan Neill-Fraser in calling for an independent review of the case which has seen her convicted and jailed for 23 years.

Dr Robert N. Moles, former professor of law, has investigated alleged miscarriages of justice for 30 years, and is the author of Forensic Investigations and Miscarriages of Justice, (Irwin Law, Toronto, 2010): “In the book, I set out the law on miscarriages of justice in Australia. I can say with confidence that the conviction of Sue Neil-Fraser does not comply with the Australian law on this topic.”

The eminent barrister Robert Richter QC said: “If half of what is alleged [in the film] is well founded, this case requires a full judicial inquiry into the investigation and prosecution of the case. There's no dingo, but there's significant DNA and other evidentiary material to require answers which are not circumscribed by the adversarial and limited appellate processes.”

Richter even wrote to Tasmania’s Attorney General several weeks ago urging a review; so far not a word.

And after seeing Shadow of Doubt, Bill Rowlings OAM, CEO, Civil Liberties Australia, exclaimed: “Police filter the truth. Forensic science is abused. The prosecutor invents a murder weapon, and the judge agrees. A miscarriage of justice so blatant you won't believe it possible in 21st century Australia.”

Indeed. If this is the norm, Tasmania’s justice system resembles that of the penal colony it once was.

Chappell’s body has never been found. The murder weapon – supposedly a heavy wrench – was invented by the Tasmanian Director of Public Prosecutions near the end of her trial. There was no such wrench; in fact no murder weapon was presented as an exhibit to the court. There were no eye witnesses.

While the wrench was imagined by the prosecution, it would have made a vivid impression in the minds of the jury. It certainly did in the mind of the judge, who referred to it eight times in his summing up, reinforcing the reality of that phantom wrench.

Shadow of Doubt alone should have been sufficient to warrant the attention of the Tasmanian justice system. They were invited to the screening, didn’t attend. Although it hasn’t made a difference yet, the film is nevertheless a galvanising force around which public and lawyers alike are gathering in growing numbers. The film – as the Neill-Fraser family – isn’t asking for the conviction to be overturned. It presents some of the flaws and weaknesses that make the conviction unsafe.

As Porter says: “There obviously should be a body like the Criminal Cases Review Commission (CCRC) in England. There is also the Scottish Criminal Cases Review Commission. The English CCRC received more than three applications every working day. There’s no doubt that many, if not most, of the cases that result in applications to these two commissions have no merit. But a reasonable number do have merit,” he notes.

The Human Rights Commission, the Law Society of South Australia, the Law Council of Australia, the Australian Lawyers Alliance and the former High Court Justice Michael Kirby, all support the idea.

Let’s hope Shadow of Doubt will ignite the same fires of outrage that led to Lindy Chamberlain regaining her freedom and establishing her innocence. But faster.